Attorney advises JBOS on powers

By Mary E. Arata, marata@nashobapub.com

Posted:
11/16/2012 07:32:28 AM EST

DEVENS -- With interest dwindling and its purpose and effectiveness questioned, the attending membership of the Joint Boards of Selectmen heard from an attorney they retained to advise the panel on the parameters of its powers.

The JBOS is comprised of representatives of the three Devens towns of Ayer, Harvard and Shirley and the Devens Advisory Committee. MassDevelopment, the state agency charged with the build out and management of the Devens Regional Enterprise Zone, attends meetings but does not vote.

Shirley selectmen withdrew from attending meetings, stating they were pointless. Shirley acquiesced to former Selectman and JBOS Chairman Rico Cappucci, who volunteered to serve as the Shirley selectmen's formal JBOS representative.

Over the summer, Harvard opted against regular attendance. On Oct. 30, the Ayer selectmen followed suit. Both Ayer and Harvard have decided to attend meetings only when matters of interest to the three towns arise.

In early October, Cappucci suggested JBOS hire Shirley attorney Ernest Hyde to serve as legal counsel to the JBOS. Hyde and Cappucci serve together upon the Shirley Economic Development Committee.

At the Oct. 25 JBOS meeting, Hyde delivered a memo following his review of controlling state law but also press coverage of JBOS history.

Hyde determined that state law "really doesn't talk about a JBOS. JBOS was created by the three towns of Ayer, Harvard and Shirley when the Army decommissioned the Fort Devens Army base.

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Still, Hyde advised that "MassDevelopment is to 'partner' for the development of a reuse plan and basically the operation of Devens. To me those are pretty strong words. If you have a partnership, you depend on each other to get the job done."

Hyde advised that the JBOS mission and responsibilities are contained in a 1994 memorandum of understanding (MOU) signed between the member towns. Hyde opined that the JBOS is "the primary advisory committee to MassDevelopment. Now that's pretty clearly spelled out in the MOU."

Hyde's memo does not reference two subsequent MOUs signed between the towns, including the most recent MOU dated December 2011. But Hyde made oral reference to the other agreements. "There was some questions as to whether the MOUs were enforceable. I believe they are. I believe there's case law that shows they're enforceable."

"I did see in some of my research that some towns felt that it was not necessary for the JBOS to meet on a regular basis," said Hyde. "In my view, MassDevelopment and Devens are moving at a fairly rapid clip -- faster than I think it was anticipated by Chapter 498. There's always something going on."

With a nod to MassDevelopment Executive Vice President for Devens Operations George Ramirez, Hyde said the agency should be "constantly updating JBOS on what major decisions they have to make -- not ordering paperclips."

Hyde said JBOS representatives bring updates "back to the towns to determine what each town's position is and come back and vote on it to come to some conclusion or at least provide input back to MassDevelopment."

"My assumption as I'd make with any contract, which an MOU is, is that both sides will cooperate to ensure each side has the opportunity to complete their side of the bargain," said Hyde. "To me, a monthly meeting is definitely warranted."

"That's a pretty heavy obligation on the part of the towns and MassDevelopment to meet and to discuss and to advise on key issues," said JBOS Chairman Tom Kinch.

Not just "key" issues, said Cappucci. "I'd say 'issues.'"

Hyde said as MOU signatories, member towns have a responsibility to MassDevelopment. "It was the three towns that promised in the MOU to provide information to MassDevelopment -- all four towns, I should say."

"They're the local lawmakers similar to the selectmen, who can make an ordinance," said Hyde. "DEC, on the other hand, is the enforcing arm of that set of laws." They don't need to be at the same table for JBOS meetings, said Hyde. "They're not mentioned in the documents, not in any of the MOUs."

Hyde advised that the JBOS is to meet jointly with MassDevelopment at least once annually on Devens. The recent trend is for local officials to sit in the audience for an informal Q&A with the MassDevelopment Board of Directors which conducts one of it's regular board meeting annually on Devens.

"OK, that is news to me," said Maxant. "How would they get here? We can't summons them."

Hyde stated that the "Land Bank and JBOS shall present a Devens report which shall highlight key issues and concerns with regard to the reuse of Devens. All annual meetings shall be open to the public." Hyde said the obligation to hold joint meetings began in 1995.

"If an entity doesn't take part or carry through, what is it that they have lost out on?" asked Kinch.

"Short of some sort of legal action -- which I'd suggest would be costly, unwarranted and ill-advised -- they're losing their opportunity to use the conduit between their town and MassDevelopment to communicate information on issues relating to Devens," said Hyde. "So if they don't attend meetings, they shouldn't come back later and say 'Oh, we had no input on that.'"

Individual town approaches to MassDevelopment are not "anticipated by the MOU," said Hyde.

"So it's in violation of the MOU?" pressed Kinch.

"I don't think you can restrict someone from a town talking to someone in MassDevelopment," said Hyde.

Devens Advisory Committee member Philip Crosby said, "We'd be better off if the three towns knew the issues, get a clarification, formulate that issue to take to MassDevelopment ... (Otherwise) no one knows what the left or the right hand is doing."

"We were not participating in the annual meeting till the end," said Cappucci. "We should be a partnership; we should be contributing. I think that's important. It's our fault that the JBOS hasn't done it."

"We need to tell MassDevelopment 'We're part of the team' and not read about it in the paper," said Cappucci.

"Where's our authority to require MassDevelopment to tell us what their plans are?" asked Maxant.

"It's implied in the MOU as with any other contract," said Hyde. "If you have two parties coming to some agreement to sign a contract with the intention to deal fairly with each other, one does not intend to sabotage the efforts of the other so the other fails."

The JBOS accepted the report and agreed to circulate Hyde's findings to the member communities. The next JBOS meeting is posted for Nov. 29 at 6 p.m. presuming there's a legal quorum.

Ramirez said he believed the fall MassDevelopment board meeting allowed the agency to "hear from the residents and the surrounding community."

But it's not a joint meeting, said Kinch, who called the current practice a hybrid.

"Basically," agreed Ramirez.

Kinch confirmed that Hyde would be paid approximately $600 to $700 for his work.

Kinch, Cappucci, and Maxant moved to hire Hyde without first vetting the concept with their respective boards. Cappucci maintained such vetting wasn't necessary.

The 2011 MOU contemplated a return to a shrunken board, with a representative from each stakeholder community. The MOU states that JBOS representatives may only vote on "administrative items" like approving "meeting minutes" without first vetting nonadministrative items with their home boards.

"We are the board," answered Cappucci. Kinch maintained the hiring of an attorney is administrative in nature.

"The JBOS has acted consistent to the way it did in the beginning," said Crosby.

"The money isn't the towns' money," said Maxant. "It is the JBOS money." Kinch clarified that JBOS funds originated with the Commonwealth of Massachusetts.

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